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Leahy holds FOIA hearing

Reformer editor testifies before Senate panel

By EVAN LEHMANN, Reformer Washington Bureau

Posted:
03/15/2007 09:08:18 AM EDT

Updated:
03/15/2007 09:38:06 AM EDT

Thursday, March 15

WASHINGTON -- Government agencies are failing to keep pace with public records requests, sometimes stalling disclosure for years, or, in one Vermont case, threatening a reporter with retaliation, according to witnesses testifying before a Senate panel Wednesday.

When it comes to complying with the Freedom of Information Act, there is a "culture of resistance" at many federal agencies, said Meredith Fuchs of the National Security Archive, which has waited up to 13 years for federal papers.

The program, located at George Washington University, catalogs declassified documents, received largely through the disclosure law enacted in 1966. The group often has to sue federal departments, such as the Central Intelligence Agency, to force compliance.

"The handling of FOIA programs at some agencies suggests that the public is considered the enemy, and any effort to obstruct or interfere with the meddlesome public will be tolerated," Fuchs said.

Sabina Haskell, editor of the Brattleboro Reformer and president of the Vermont Press Association, said state agencies are confused by the frequency of changes made to the state law.

"Our biggest hurdles are that people don't know whether they're allowed to give the documents," Haskell told the committee, saying local government agencies too often assume the records should be kept secret.

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"It's like you're guilty until you're proven innocent," Haskell said of reporters.

Sen. Patrick Leahy, chairman of the Judiciary Committee, held the hearing a day after he introduced a bill to strengthen the Freedom on Information Act. He introduced a similar measure last year; it was not voted on.

Leahy said the public records law "faces challenges like never before."

He cited the Bush administration's "near obsession" with secrecy, the growth of backlogged records requests and an exemption issued after the Sept. 11, 2001, terror attacks that allows the Department of Homeland Security to deny requests related to "critical infrastructure."

Leahy says the exemption is misused and marks the "biggest single rollback" in the law's 41-year history. Regarding delays, he said the oldest request on record is from 1989.

"The consequences of these policies is a FOIA process that is plagued by excessive delays and focused on secrecy rather than transparency," Leahy said at the hearing.

In 2002, the government had about 138,000 unanswered public records requests, according to the Government Accountability Office, the investigative arm of Congress. That number grew 45 percent by 2005, to about 200,000, the GAO reported. Federal agencies are required to respond to a request within 20 days.

Tom Curley, president and CEO of The Associated Press, told the committee that his wire service waited nearly a year for documents related to potentially dangerous lead exposure in children's lunchboxes.

That's just one example, he said. The AP has also paid more than $100,000 in legal fees to make the Pentagon comply with requests about detainees in Guantanamo Bay, Cuba.

In many legal cases, federal agencies provide the documents at the last minute, just before a judge is about to rule, thereby avoiding having to pay attorneys' fees incurred by news outlets.

"There is no provision to enforce FOIA right now," he said. "That's the problem."

The bill offered by Leahy and Sen. John Cornyn, R-Tex., would make federal agencies pay a news outlet's legal fees even if a judge never rules on the case.

It would also provide disciplinary action for agencies that fail to turn over documents, hasten responses by tracking FOIA requests, and create an ombudsman who could mediate disputes and minimize lawsuits.

Leahy invited Haskell to testify as the Reformer was pursuing public records of the Vernon Volunteer Fire Co. A reporter asked for the department's financial records this week.

The fire chief told the reporter, "If you print any of this, I will assure you there will be some retaliation," Haskell said.

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